Duplex Australia Pty Limited v Hathaway [2024] NSWCATAP 228

Duplex Australia Pty Limited v Hathaway [2024] NSWCATAP 228

Leave to appeal was refused as the appellant failed to demonstrate any substantial miscarriage of justice or error of law; all grounds raised, including those relating to procedural fairness, standing, evidence admission, and classification of major defects, were either properly addressed by the Tribunal or resulted from the builder's own litigation choices. Costs orders made at first instance were set aside and replaced with a process to allow further submissions due to procedural fairness concerns.

Parties
Appellant: Duplex Australia Pty Limited; First Respondent: Jade Hathaway; Second Respondent: Jacinta Harrison
Jurisdiction
Australia
Judgment Date
13 November 2024
Procedural Posture
Civil Appeal / Judgment After Hearing on Leave to Appeal
Outcome
Leave to appeal refused; appeal dismissed except for costs order, which was set aside and re-made.
Legal Topics
Statutory Warranties, Major Defects, Tribunal Procedure, Costs
Building and Construction Law Consumer Law Statutory Warranties Major Defects Tribunal Procedure Costs

Case Brief

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Parties

Duplex Australia Pty Limited

Appellant

Jade Hathaway

First Respondent

Jacinta Harrison

Second Respondent

Procedural Posture

Civil Appeal / Judgment After Hearing on Leave to Appeal

Legal Issues

  1. 1 Whether the Tribunal erred in finding standing for the homeowners under sections 18C and 18D of the Home Building Act 1989
  2. 2 Whether the Tribunal erred in allowing amendment to Points of Claim or evidence outside timetables
  3. 3 Whether the Tribunal erred in classifying certain defects as major defects under the statute

Ratio Decidendi

Leave to appeal was refused as the appellant failed to demonstrate any substantial miscarriage of justice or error of law; all grounds raised, including those relating to procedural fairness, standing, evidence admission, and classification of major defects, were either properly addressed by the Tribunal or resulted from the builder's own litigation choices. Costs orders made at first instance were set aside and replaced with a process to allow further submissions due to procedural fairness concerns.

Court Disposition

Leave to appeal refused; appeal dismissed except for costs order, which was set aside and re-made.

Orders

  • Leave to appeal is refused and the appeal is dismissed except in relation to the costs order numbered (2) made in Tribunal Proceedings 2023/003960620, which order is set aside and in lieu thereof the following orders made: (a) Subject to order 1(b), Duplex Australia Pty Ltd is to pay Jade Hathaway's and Jacinta...
  • Subject to order 3, Duplex Australia Pty Ltd is to pay Jade Hathaway's and Jacinta Harrison's costs of the appeal on the ordinary basis as agreed or assessed.